SuOMOTOCASE NO.18OF2010final.docPresent
Mr. Justice Iftikhar Muhammad Chaudhry, CJ. Mr. Justice Tariq Parvez Mr. Justice Amir Hani Muslim
SUO MOTO CASE NO. 18 OF 2010
(Suo Moto Action regarding violation of Public Procurement Rules, 2004 in procurement loss of billions of rupees of exchequer caused by National Insurance Company Ltd.)
On Court Notice: Maulvi Anwar-ul-Haq, Attorney General for Pakistan For Establishment Division: Mr. Sohail Ahmed, Secretary For M/o Information: Mr. Taimoor Azmat Osman, Acting Secretary For M/o Interior: Nemo For the FIA: Nemo Date of hearing : 25.7.2011
O R D E R
Iftikhar Muhammad Chaudhry, CJ.— Brief facts of the case
are that on 06.05.2010, a letter was addressed to Mr. Ayaz Khan
Niazi, Chairman, National Insurance Company Limited (NICL), by
Transparency International Pakistan, copy of which was also forwarded
to Registrar of this Court. The summarized allegations leveled in the
letter are as follows:-
“1. Procurement of 803 kanal – 19 Marla Plot in Lahore
reportedly belonging to Ex-MNA Mr. Habibullah
Warraich, which had market value of Rs.300,000/- per
Kanal, whereas NICL was buying it at Rs.2,000,000/-
per Kanal.
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2. 27000 sft. Office space in Dubai in Liberty tower was
purchased in July 2009 @ UAE Dirham 2,700 per sft.,
against the market price of AED 1,200 per sft. allegedly,
causing loss to exchequer of Rs.900 million.
3. 10 Acre plot purchased in Korangi Deh Phihai, in August
2009 @ Rs.90,000,000/- per acre, against maximum
market price of Rs.20,000,000/- per acre, causing loss
Rs.70,000,000/- per acre.
4. Award of Contracts of painting works and furniture to
M/s Casa Bella Lahore, Karachi for Rs.26.987 million
and at Islamabad for Rs.9.31 million, who was not a
license holder of Pakistan engineering Council. The
tender for Karachi was for 6 floors but the Contractor
has been asked to paint only 4 floors.
5. Land was purchased in Lahore in the year 2009 from
Mr. Mohsin Warraich for Rs.1.5 billion, whose market
value was Rs.30 million causing loss to Exchequer
Rs.1.2 billion.”
2. The matter was registered as HRC. No.3379-S/2010 and vide
letter dated 12.02.2010, report was called from Chief Secretary
Punjab, who submitted his report on 4.3.2010 stating therein that
NICL intended to purchase a piece of land for developing a housing
colony at Lahore at exorbitant price to benefit a few persons, who
were behind the deal.
3. Vide letter dated 24.3.2010 report was called from Secretary
Board of Revenue, Punjab, who in his report dated 2.4.2010 narrated
the same answer as was given by the Chief Secretary, Punjab.
Thereafter, vide order dated 26.4.2010 the matter was referred to
Chairman NAB for conducting discreet inquiry and report. The
Chairman NAB, submitted reports dated 19.5.2010, 1.6.2010 and
14.6.2010. In the light of the reports submitted by the authorities, the
matter was then registered as SMC No.18/2010 and was fixed before
the Court on 12.10.2010.
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4. On 12.10.2010, when the matter was taken up in Court as Suo
Moto Case, the Secretary Commerce was directed to lodge criminal
complaint/report with F.I.A., in respect of above transactions against
all concerned, as a result whereof a case FIR No.24/2010 dated
12.10.2010 under sections 409, 420, 109 PPC read with 5(2) PCA was
registered with FIA Circle, Lahore. However, this Court feeling
dissatisfied with the above proceedings, directed the FIA to accelerate
the proceedings; cause arrest of the accused, particularly the
influential persons; and to register cases regarding other incidents.
5. On 09.12.2010 Mr. Zafar Ahmed Qureshi, the then Director, FIA
submitted a report stating therein that at Lahore, another FIR No.
29/2010 was registered against Ayaz Khan Niazi and others, whereas,
in FIR No.24/2010, one Habibullah Warraich was arrested and Rs.1.4
billion were recovered from him, whereas, steps were being taken to
cause arrest of Mohsin Habibullah Warraich. The complete details of
the recoveries and investigation are not being given here so it may not
cause any prejudice to either of the parties. In the meanwhile
influential persons tried to interfere in the investigation to get the
favorable results.
6. It is to be noted that when under the supervision of Mr. Zafar
Ahmed Qureshi the investigation was likely to make effective progress,
he was abruptly transferred to National Police Foundation as Managing
Director, on the pretext that after his promotion in Grade 21 he could
not continue as a Director in FIA. An exception on his transfer was
taken by this Court and competent authorities were compelled to allow
him to continue investigation of the case. Thus, on 25.01.2011 Mr.
Qamaruzzaman Chaudhry, Secretary, Ministry of Interior, Government
of Pakistan placed on record the notification dated 24.01.2011, issued
by the Government of Pakistan whereby Mr. Zafar Ahmed Qureshi,
was appointed as Additional Director General, FIA in addition to his
other assignment to supervise investigation of NICL case at Lahore.
7. Mr. Zafar Ahmed Qureshi, Addl. D.G. submitted report on
17.2.2011, according to which, FIA had collected incriminating
evidence against Mohsin Warraich, Habibullah Warraich, Moonis Elahi
and Raja Muhammad Ali in accordance with law. He, however,
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expressed that during discharge of his function, he was threatened of
dire consequences by some persons. He recorded his statement in
open Court that in case of his unnatural death, Chaudhry Shujat
Hussain, Chaudhry Pervez Elahi, Chaudhry Wajahat Elahi, Moonis
Elahi, Major Habibullah Warraich and Mohsin Habib Warraich, would be
responsible for the same. In this regard directions were issued to the
Attorney General for Pakistan to take all necessary steps to ensure
that Mr. Zafar Ahmed Qureshi would be allowed to conduct the
investigation of the cases freely without facing any threat or
consequences from anyone. In response to this situation CMA No.1710
of 2011 titled as Ch. Shujaat Hussain v. Zafar Ahmed Qureshi was
moved wherein a request was made that Mr. Zafar Ahmed Qureshi be
proceeded against as he had made a false statement before this Court
noted above. This application is pending for decision.
8. On 21.3.2011, Mr. Zafar Ahmed Qureshi, Addl. D.G. FIA
submitted report mentioning therein that in case FIR No.24/2010 with
regard to land equal to 804 kanals, an amount of Rs.1,686,300,000/-
had been recovered and Challan against the accused persons had been
forwarded to the court of competent jurisdiction; in case FIR
No.29/2010 an amount of Rs.80,000,000/- had been recovered and in
FIRs No. 46/2010 and 05/2011, accused including Ch. Moonis Elahi
had been arrested and interim Challan had been forwarded to the
court of competent jurisdiction. However, he submitted that he was
being maligned unnecessarily in the media by some of the arrested
persons. A Civil Miscellaneous Application No.874/2011 was also filed
on behalf of Ch. Shujat Hussain and others containing the prayer for
transfer of investigation from Mr. Zafar Ahmed Qureshi to some other
officer.
9. On 14.4.2011 Mr. Zafar Ahmad Qureshi, Addl. Director General
had provided following breakup of the recovered amounts relating to
NICL:-
“(i) FIR No.24 of 2010: An amount of Rs. 1.6863 Billion
against the property measuring 804 Kanal has been recovered
and transferred to the account of NICL.
(ii) FIR No.29 of 2010: Commercial plot measuring 20 kanals
at Airport Road, Lahore was purchased by NICL for an excessively
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exorbitant price Rs. 1.06 Billion which by all surveyor report, was
highly inflated price. An amount of Rs. 80.400 million was
recovered and deposited in account of NICL. For the balance
amount of Rs.42 Million, postdated cheques were deposited by
one Muhammad Akram Warraich (uncle of Mohsin Habib
Warraich) before the learned Special Judge (Central) Lahore.
These postdated cheques and interest thereon was made
recoverable by six monthly installments in a period of about five
years.”
10. It is pertinent to mention here that on 25.1.2011, when the
Court inquired the reason for not arresting Amin Qasim Dada, who was
one of the directors of NICL, Mr. Zafar Ahmed Qureshi explained that
as per version of Moazzam Jah, Director FIA, Karachi, Amin Qasim
Dada used to sit with DG, FIA in his camp office, therefore, he could
not cause his arrest. This statement was confirmed by Mr. Moazzam
Jah. In the said circumstances the Court was constrained to observe
that “it seems that instead of allowing his Director to make progress in
the case, he (DG, FIA) is providing shelter to the accused persons”. On
making such statement and his decision to proceed against influential
persons noted above, they started creating trouble for him to
investigate the case smoothly.
11. During investigation of the case the FIA officials contacted with
Serious Organized Crime Agency (SOCA), UK for obtaining the
information regarding the foreign currency accounts of Moonis Elahi,
one of the accused in FIR No. 46/2010, and according to reports
available on record he had an account in EFG Private Bank, UK having
balance of £ 1,1,38792.53 and another account in Barclays Bank in
the name of Beenish Khan (wife of Mohsin Habib Warraich) having a
balance of £ 102,307.63 (transferred from the account in EFG Private
Bank Ltd.). The then D.G. FIA, Waseem Ahmed kept the said
information pending with him for 21 days and this fact has been
verified by Mirza Sultan M. Saleem, Director, FIA in his statement
recorded before the investigation team. Later on he was also
transferred from FIA.
12. Malik Muhammad Iqbal was posted in place of Waseem Ahmad,
DG FIA. He, instead of facilitating Mr. Zafar Ahmad Qureshi in
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accomplishing the task assigned to him by this Court , to probe into
corruption cases, wrote a letter dated 15.4.2011 to the Secretary,
Ministry of Interior, Government of Pakistan, contents whereof are
reproduced hereinbelow:
ISLAMABAD
Subject: NOTIFICATION
No.3/6/2011-Estt (FIA), dated 09-02-2011, in pursuance of
the Notification issued by the Government of Pakistan, Cabinet
Secretariat, Establishment Division No.F.12/3/81-E-3(Police)
dated 24-01-2011 with respect to posting of Capt. (R) Zafar
Ahmed Qureshi, (PSP/BS-21) as member of the FIA against
the post of Additional Director General/FIA to supervise the
investigation of NICL case at Lahore.
2. It will not be out of place to mention that the interim
challans in NICL cases have been submitted in the Court of
competent jurisdiction on 11-04-2011 and a report thereof has
already been submitted in the Honourable Supreme Court of
Pakistan on 14-04-2011 by the said officer.
3. The matter is brought to your notice for further
necessary action.
Director General/FIA”
13. In view of the letter reproduced hereinabove, as is evident, the
Ministry of Interior sent a letter dated 16.4.2011 to the Establishment
Division stating therein that “please find enclosed a reference received
from Director General, Federal Investigation Agency (F.I.A) regarding
the latest position of investigation in NICL case at Lahore”. Accordingly
the Establishment Division, on 18.04.2011, issued following
Notification:-
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CABINET SECRETARIAT ESTABLISHMENT DIVISION
NOTIFICATION
Additional Director General, Federal Investigation Agency,
under Ministry of Interior, in addition to his present assignment
as Managing Director, National Police Foundation, to supervise
the investigation of NICL case vide this Division’s Notification of
even number, dated 24-01-2011.
intimated that the recoveries have been made and the Chalan
submitted in the said case. Therefore, the additional charge of
the officer as Additional Director General, Federal Investigation
Agency is hereby withdrawn with immediate effect.
-Sd-
Government of Pakistan”
14. The Court was prima facie of the opinion that Malik Muhammad
Iqbal, D.G. FIA by sending a letter dated 15.04.2011, reproduced
hereinabove, had created obstacles in investigation of the case which
was being conducted by Mr. Zafar Ahmad Qureshi, in pursuance of
directions of this Court and in this manner had disturbed, disobeyed
and disregarded the order/direction of this Court; and had interfered
with, the process of law and due course of judicial proceedings by
getting the Additional DG FIA, disassociated from the investigation,
therefore, vide order dated 10.05.2011, show cause notice of
contempt of Court was issued to him under Article 204 of the
Constitution read with section 3 & 5 of the Contempt of Court
Ordinance (Ordinance V) of 2003 to explain as to why he should not
be proceeded against for the violative acts detailed therein interfering
in the affairs of this Court by approaching the Government authorities
for the purpose of getting notification dated 18.4.2011 issued on the
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basis of which an officer taking deep interest in recovery of a huge
amount of the public exchequer, had been disassociated from the
investigation.
15. Malik Muhammad Iqbal, DG, FIA initially filed his explanation to
the show cause notice vide C.M.A. No.1836 of 2011, then filed reply to
the show cause notice. In his reply he also mentioned that on
29.4.2011, well before the order passed by this Court on 10.5.2011,
he wrote to the Secretary, Ministry of Interior specifically requesting
that the notification in question may be withdrawn and the earlier
notification of 24.1.2011 be restored, “so that Mr. Zafar Ahmed
Qureshi may complete the investigation as Member of FIA by adjusting
him against the post of Additional Director General FIA in addition to
his present assignment”. However, the authority did not accept his
request and Mr. Zafar Qureshi was not transferred back.
16. On 03.06.2011 after having discussed the case at some length,
charge was framed against Malik Muhammad Iqbal, DG FIA who
submitted reply which reads as under:-
“Respectfully submitted that the undersigned holds the apex court in the highest esteem and respect. I do not want to contest the charge. However, most respectfully I submit that it was not my intention or object to undermine the authority of this Hon’ble Court and subvert its orders/directions. I stand by my earlier statement dated 14.5.2011 submitted through my counsel Mr. Makhdoom Ali Khan. I humbly and respectfully seek mercy and clemency of the august Court and by way of extenuating circumstance I submit that I am superannuating on 14.07.2011 and I shall immediately proceed on leave and not serve.”
On the same date, notice was issued to the Secretary Interior to
appear along with record of the case including the summaries, on the
basis of which case was forwarded to the Secretary Establishment for
issuing the notification, disassociating Mr. Zafar Ahmed Qureshi from
the said case. Secretary Establishment was also asked to remain in
attendance with complete record.
17. On 8.6.2011, Mr. Abdul Rauf Chaudhry, Secretary Establishment
appeared and stated that he had not floated any summary to the
competent authority/Prime Minister regarding transfer of Mr. Zafar
Ahmed Qureshi, and the notification dated 18.4.2011 was issued
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without any summary on the verbal orders of the competent authority
on 18.4.2011 at about 10/11 pm., confirmation of which was sought
by him on 20.4.2011 from the Prime Minister’s Secretariat’s (Public).
18. Above contempt matter was reserved for judgment, which was
to be announced on 16.6.2011 but on this date notices for Contempt
of Court were ordered to be issued to M/s Qamar Zaman Ch.,
Secretary, Ministry of Interior; Abdul Rauf Ch. Secretary,
Establishment Division; and Khushnood Lashari, Principal Secretary to
the Prime Minister for willful defiance of the orders of this Court
passed on 24.1.2011 by withdrawing notification dated 18.4.2011. A
separate Criminal Original Petition No.50/2011 was registered against
the above named three officers. However, it was further observed that
the judgment in the contempt matter with regard to Muhammad Iqbal,
D.G. would be announced after hearing above named officials.
19. This Court invariably exercises restraint instead of passing any
coercive order but in view of above circumstances it having been left
with no option, was constrained to pass order dated 1.7.2011
suspending the operation of notification dated 18.4.2011, issued by
the Government of Pakistan, Cabinet Secretariat, Establishment
Division, whereby services of Mr. Zafar Ahmad Qureshi were
withdrawn as Additional Director General, FIA. The incumbent D.G. FIA
was directed to extend all necessary assistance to him. Concluding
para of the order dated 1.7.2011 is reproduced hereinbelow:-
“In the facts and circumstances when such like honest and
upright officer. Who has always upheld the national interest
and had taken all manner by issuance of the notification dated
18.4.2011 by the Establishment E-3(Police) dated 18.4.2011
issued by the Government of Pakistan, Cabinet Secretariat,
Establishment Division till further orders. The incumbent D.G.,
Qureshi for carrying out investigation of the cases registered at
Lahore in respect of N.I.C.L scam and any other matter
connected and related thereto in terms of earlier notification
dated 24.1.2011 issued by the Establishment Division. No
interference of any nature whatsoever shall be caused either by
D.G., FIA or by any other authority and he would take over the
charge of the investigation of the cases of N.I.C.L. scam at
Lahore immediately and would be free to take all such steps
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and adopt all measures in discharge of his duties necessary for
conducting transparent investigation. He shall, however, be
submitting fortnightly reports to Mr. Justice Amir Hani Muslim
in Chambers for perusal.”
20. After passing of the order dated 1.7.2011, on the same day the
following members of the investigation team working under the
supervision of Mr. Zafar Ahmad Qureshi were transferred to different
places by the incumbent D.G, FIA:-
(i) Mr. Javed Hussain, Dy. Director
(ii) Mr. Muhammad Ahmad, Assistant Director
(iii) Mr. Khalid Anees, Assistant Director and
(iv) Mr. Muhammad Sarwar, Inspector
On the next day i.e. 2.7.2011 Mr. Zafar Ahmad Qureshi was served
with a notice to explain within 24 hours of the receipt of the
explanation that the news item was flashed in the electronic media on
2.7.2011 mentioning that he had written a letter to D.G. FIA to the
effect that transfer orders of various officers of FIA were irregular and
asked him to withdraw the said orders forthwith, but he had failed to
contradict the said news, giving the impression that the said news was
correct. After receipt of explanation, Mr. Zafar Ahmad Qureshi was
suspended and proceedings were initiated against him vide order
4.7.2011, which is reproduced hereinbelow:-
“No.1/7/2011-Secy(1) GOVERNMENT OF PAKISTAN
ORDER OF SUSPENSION
I am directed to inform you that on appearance of a news
item on 2.7.2011 on the electronic media your comments were
noted and keeping in view the decorum and smooth running of
the institution of the Federation you were required to explain
your position vide.No.F.12(3)81E-3(Police), dated 2.7.2011,
issued by Establishment Division as to why you should not be
proceeded against under the Government Servants (Efficiency
and Discipline) Rules 1973 for misconduct. Prima-facie your said
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actions are in sheer violation of provisions of rules 18 and 22 of
the Government Servant (Conduct) Rules 1964.
You were accordingly given a fair chance of rendering an
explanation within 24 hours on receipt of the above letter and it
was made abundantly clear that failing this it shall be presumed
that you have no explanation to offer and you would render
yourself liable to be proceeded against under the rules.
That you submitted your explanation within stipulated
time which was examined at the competent level and after due
consideration was found unsatisfactory. In view of the foregoing,
competent authority has been pleased to order to place you
under suspension by exercising powers under Rule 9 of the
Government Servants (Efficiency and Discipline) Rules 1973 with
immediate effect.
follow.
(FIDA HUSSAIN AFRIDY) Deputy Secretary”
21. The matter came up before this Court on 7.7.2011 when copy of
the explanation, reply and the suspension order dated 4.7.2011 were
produced in Court. At that stage learned Attorney General was
confronted with the news items published in all the leading
newspapers wherein it was mentioned that on account of some
political intervention action against Zafar Ahmad Qureshi has been
initiated and he had been placed under suspension, learned Attorney
General stated that till he took instructions, departmental proceedings
against Mr. Zafar Ahmad Qureshi would not be undertaken. D.G. FIA
was also directed to reverse the transfer orders of the
officers/members of the investigation team of Mr. Zafar Ahmad
Qureshi immediately and post them at the places where they were
directly performing their duties pending decision of this matter.
22. Despite of restraining order dated 7.7.2011 fresh proceedings
were initiated against Mr. Zafar Ahmad Qureshi on the basis of some
other notice. As such vide order dated 13.7.2011 all notices and or
communications issued to Mr. Zafar Ahmad Qureshi were suspended
and the Secretary Interior or any other authority competent in that
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without prior permission of this Court.
23. On 14.7.2011 it was brought to the notice of the Court that
officers/members of the investigation team of Mr. Zafar Ahmad
Qureshi had been transferred and posted back to the places where
they were performing duties.
24. One issue, which requires determination is, as to whether in
order to nullify the order of this Court dated 01.07.2011, reproduced
hereinabove whereby Mr. Zafar Ahmad Qureshi was reposted as Add.
DG FIA to conduct/supervise the investigation in NICL cases, was
ordered to be proceeded departmentally in pursuance of letter dated
2nd July, 2011 originated under the signature of Mr. Tehsin Anwar Ali,
DG FIA. A perusal of this letter indicates that the allegations against
Mr. Zafar Ahmad Qureshi were that he had leaked the official
information to private channels about issuance of letter by him to
D.G., FIA for cancellation of transfer orders in respect of some FIA
officials. It was further alleged that the said letter was issued without
lawful authority and the copy of the same was sent to the Registrar of
this Court and Secretary Interior without following proper channel. At
this stage it would be appropriate to reproduce the latter dated
2.07.2011 issued by Mr. Zafar Ahmed Qureshi, which reads as under:-
“The Director General Federal Investigation Agency Islamabad Subject: Notification for transfer/posting orders No.A- 793/Admn/2011 dated 01.07.2011 Reference to your notification, the following officials which were working as a team in N.I.C.L scam under the direct supervision of the undersigned has been transferred vide letter no.No.A-793/Admn/2011 dated 01.07.2011 may please be cancelled immediately in compliance of the order of the Honourable Supreme Court of Pakistan No.S.M.C. No.18/2010, etc. –SCJ dated 01.07.2011 (Copy enclosed). In which it has been directed
“No interference of any nature whatsoever shall be caused either by D.G. FIA or by any other authority and he would take over the charge of the investigation of the cases of N.I.C.L scam at Lahore immediately and would be free to take all such steps and adopt all measures in discharge of his duties necessary for conducting transparent investigation.”
From To
Corporate Crime Circle, FIA, Punjab, Lahore
FIA, ACC, D.I. Khan, KPK Zone
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FIA, ACC Punjab Zone, Lahore
FIA, AHTC, Turbat Baluchistan Zone.
3. Mr. Khalid Anees, Asstt. Director (BS-17)
FIA, ACC Punjab Zone, Lahore
FIA, ACC Peshawar, Zone.
FIA, CBC Punjab Zone, Lahore
FIA, AHTC, Gowadar, Baluchistan Zone.
The subject transfer of N.I.C.L member team intentionally at far flung places amounts to create hindrance and obstacles in the smooth process of investigation, which amounts to the non- compliance of order of the Honourable Supreme Court of Pakistan. Please ensure strict compliance.
Signature of joining officer (Capt.(Ret)Zafar Ahmad Qureshi)PSP
Managing Director, National Police Foundation
25. In pursuance of letter dated 2.7.2011 issued by Tehsin Anwar
Ali, D.G. FIA, letter of explanation dated 2.7.2011 was issued by Afzal
Latif, Joint Secretary (E), Cabinet Secretariat, Establishment Division
to Mr. Zafar Ahmad Qureshi, which reads as under:-
“Subject: EXPLANATION The electronic media on the evening of July 2, 2011 has been consistently carrying news items alleging that you have written a letter to Director General, FIA to the effect that the transfers ordered by him of various officers of the FIA are irregular and illegal and have asked the Director General, FIA to withdraw the said orders forthwith. 2. This news in the electronic media has not been contradicted by you, giving the impression that the said news reports are correct. 3. Prima facie, your actions appear to violate provision of Rules 18 & 22 of the Government Servant (Conduct) Rules, 1964. 4. You are hereby directed to explain why should not be proceeded against under the E&D Rules, 1973, for misconduct. 5. Your explanation should reach the undersigned within 24 hours of receipt of this letter, failing which it shall be presumed that you have no explanation to offer and you shall be liable to be proceeded against under the Rules.
(Afzal Latif) Joint Secretary(E)”
26. In response to the said letter, Zafar Ahmad Qureshi gave the
following explanation:-
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2. It is correct that I wrote a letter to DG FIA No.A/234/NPF/11/950-52, dated 2.7.2011 (copy enclosed)whereby I requested that the officers working earlier assisting the investigation of NICL scam and the transfer of these officers who were assisting me in the investigation of NICL scam should be cancelled as it would not be possible for me to complete the investigation of NICL scam as directed by the honourable Supreme Court of Pakistan (copy enclosed). However, I did not give the press release of the news as I am a Government Servant and habitually avoid contact with the press.
(Zafar Ahmad Qureshi) Managing Director/ ADG FIA at Lahore
3.7.2011”
27. As far as the issue of committing misconduct by Mr. Zafar
Ahmed Qureshi is concerned, it has to be examined in the background
of the case as well as the events that have taken place after passing of
the order dated 01.07.2011, details of which have already been stated
hereinabove, more particularly the registration of criminal cases vide
FIRs No. 46/2010 dated 27.12.2010 and 05/2011 dated 27.1.2011
against one Moonis Elahi son of Pervez Elahi, on account of which he
was arrested and was subjected to investigation along with other
accused. It is pertinent to mention here that the interim challan was
submitted in the said cases but in the meanwhile Malik Muhammad
Iqbal, the then D.G. FIA, against whom matter for contempt of Court
is pending and has been reserved for announcement of judgment,
managed to ensure his disassociation from the cases. Detailed facts in
this behalf have already been noted in the preceding paragraphs.
28. Facts noted hereinabove, Prima facie, support to infer that after
registration of FIRs against Moonis Elahi and others, efforts were
accelerated to disassociate Mr. Zafar Ahmed Qureshi from the
investigation of the said cases. It is to be noted that during the
investigation of the cases, Mr. Zafar Ahmed Qureshi approached to
Serious Organized Crime Agency (SOCA), UK, through Mirza Sultan M.
Saleem, the then Additional Director NCB/Interpol FIA Headquarters,
and succeeded in obtaining information from SOCA about the bank
account of Moonis Elahi with EFG Private Bank Ltd., having a balance
of £ 1,138,792.53, in the name of a company owned by him and
another account in Barclays Bank in the name of Beenish Khan (wife of
Mohsin Habib Warraich) having a balance of £ 102,307.63 (transferred
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from the account in EFG Private Bank Ltd.). This fact has been
disclosed in the report submitted in the Court on 25.07.2011 in
pursuance of earlier directions made by this Court. The report further
indicates that the said amount has been allegedly transferred from
NICL transactions. The said fact has also been admitted by the learned
Attorney General for Pakistan during hearing of the case.
29. Above facts, inter alia, if proved in Court of law, can entail
serious consequences. As such it was felt necessary for vested interest
to block re-association of Zafar Ahmad Qureshi, with the cases in
pursuance of order of this Court dated 1.7.2011, therefore, allegedly
efforts continued at different levels. This fact had also received
sufficient corroboration from the reports published in print media on
5.7.2011 and 6.7.2011, wherein it has been reported that the
suspension of Mr. Zafar Ahmed Qureshi from service was a result of
political intervention. Abstracts from some of the leading newspapers
are given below for reference:-
05.07.2011
THE NEWS INTERNATIONAL SC snubbed as Qureshi suspended for ‘talking’ In what appears to be a direct rebuff to the Supreme Court, the government has once again thwarted the SC’s efforts to force the investigation of the Rs.5 billion NICL scam through a particular officer, by suspending Additional Director General FIA, Zafar Qureshi, within 72 hours of his reinstatement, on the ruse of talking to media without departmental authorisation. … Qureshi had been forcibly brought back to head the investigations when the supreme court, on July 1st, cancelled his earlier transfer orders and forced the executive to reassign the multi-billion rupee National Insurance Company Limited scam to him. The Supreme Court had also directed the DG FIA, on Friday to provide full assistance to Qureshi in investigations. … The case was of particular import to the ruling PPP for two reasons. Firstly, it involved Moonis Elahi, the scion of the Gujrat Chaudrys whose support is critical for the government to survive in parliament; and secondly, the Gillani led executive appears in no mood to accept the precedence of the judiciary directing the executive on how to run its house. ……… Another source however insisted that the decision to suspend Qureshi had actually been taken in a meeting between Prime Minister Yusuf Raza Gillani, Rehman Malik and Chaudry Pervez Elahi. THE NEWS INTERNATIONAL The four options Qureshi was given but rejected
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One of the most powerful ministers summoned the FIA Additional Director General Zafar Qureshi on Sunday and gave him four options: leave the country immediately; go on a long leave; tell the Supreme Court in writing that he cannot continue with the NICL investigation for personal reasons; and, if all the three are not possible, then bail out Moonis Elahi, the son of the Chaudhry Pervez Elahi, the new coalition partner of the PPP government, The News has learnt. Credible interior ministry sources told The News that the minister told Qureshi that because of his investigations, the government alliance was in danger and the government might fall as a result of the completion of his investigations. Hence, he (Qureshi) should not be a part of destabilising the government. It was also learnt that the Chaudhrys of Gujrat have made it clear to the government that if Qureshi came back to Lahore and started his work on the NICL scam, the PML-Q will no more be a part of the PPP government. It is also worth mentioning that besides Moonis Elahi, Prime Minister Yousuf Raza Gilani’s son is also involved in the NICL scam worth billions of rupees. According to experts, the finding of crucial evidence by Qureshi against the sons of the two top leaders was the major reason for the formation of the new alliance of PPP with the PML-Q. THE EXPRESS TRIBUNE INTERNATIONAL NICL lead officer: Reinstated by the court, ousted by the government The rigmarole over the posting of an additional director general of the FIA, which has played out over the last few months between the executive and judiciary, has taken yet another twist. Finally reinstated on Friday by the Supreme Court to the post of the Federal Investigation Agency (FIA)’s lead investigator of a multibillion rupee scam, Zafar Qureshi was sent packing once again on Monday – this time in the form of a suspension. …… In the meeting with Malik on Sunday, sources The Express Tribune that Qureshi had allegedly given three options: Go on long leave, declare that Moonis Elahi was “not guilty” or face severe action. It was said that Qureshi did not respond favourably. Qureshi had refuted charges of interacting with the media, explaining that copies of the order were sent to the secretary interior, DG FIA and the registrar of the Supreme Court, saying that this increased the chance of it being leaked to the media. He also explained that he had not done anything on his own and he was only complying with orders of the apex court. He said that he had neither called any press conference nor issued any press statement in this regard. THE DAILY DAWN NICL scam investigator suspended The government on Monday suspended Zafar Hussain Qureshi, an Additional Director General of the Federal Investigation Agency who was investigating the National Insurance Company Limited (NICL) financial scam in which the elder son of federal minister Chaudhry Pervaiz Elahi is the main accused. The Supreme Court had ordered bringing back Mr Qureshi to the NICL investigations – the assignment from which he was removed
17
in April this year, apparently to appease PML-Q leaders Chaudhry Shujaat Hussain and Chaudhry Pervaiz Elahi. ………… According to sources in the prime minister’s secretariat, the decision to suspend Mr Qureshi was taken after a meeting earlier during the day between the prime minister and the Chaudhrys. Interior Minister Rehman Malik attended the meeting, too. According to the sources, the government had assured PML-Q leaders that it would help secure the release of Mr Moonis Elahi once the party joined the ruling coalition. THE DAILY NATION Govt suspends Zafar Qureshi In yet another ugly turn in NICL corruption scandal investigation, the federal government Monday night suspended a competent senior FIA officer, Zafar Ahmad Qureshi, on the pretext of his “speaking to media”. ……… Significantly the suspension order for Zafar Ahmad Qureshi was issued after Senior Minister Prevaiz Elahi accompanied by Minister for Interior Rehman Malik called on Prime Minister Yousuf Raza Gilani. Prevaiz Elahi’s son Moonis Elahi is involved in the scam and he has been under detention for the last few months. With his restoration orders the apex court had also directed FIA DG to facilitate ADG Qureshi in NICL scam investigation. But instead of facilitating the ADG, the DG on the very same day transferred all investigation team members assisting the ADG in the NICL case to remote and difficult posts. An FIA officer said that he was suspended only to teach him a lesson. THE DAILY TIMES Additional FIA DG Zafar Qureshi suspended National Police Foundation Managing Director and Federal Investigation Agency Additional DG Capt (r) Zafar Ahmad Qureshi has been suspended after his explanation for his comments on the media were termed unsatisfactory after examination by the concerned authority. The competent authority has placed Qureshi under suspension by exercising power under rule 9 of the Government Servants (Efficiency and Discipline) Rules 1973 with immediate effect. According to the suspension order issued on Monday by the deputy secretary of the Interior Ministry, after approval from the competent authority, the said officer submitted his explanation within stipulated time as given to him by the competent authority to explain the matter, which was found unsatisfactory. ……… The Supreme Court had only a few days back ordered reinstatement of Qureshi, who was suspended earlier by the government. 06.07.2011 THE NEWS INTERNATIONAL Qureshi had evidence of foreign accounts Suspension of FIA’s Zafar Qureshi has not only prevented the possible progress in NICL case but has also halted the suspended officer from pursuing an enquiry against his juniors for creating hurdles in his NICL probe, documents reveal.
18
Zafar Qureshi wanted to proceed against the former DG FIA Waseem Ahmed for not cooperating and providing information about the foreign currency accounts of Moonis Elahi, received by the FIA headquarter from Serious Organized Crime Agency (SOCA) UK, which delayed the process to reach its logical conclusion. Sensing the gravity of the situation as Zafar Qureshi had started expanding his area of investigation former DG FIA Malik Iqbal stopped him from further pursuing the matter by expressing his displeasure to Zafar Qureshi and stating that “under the pretext of investigation, you have started inquiries about the conduct of FIA officers”. THE NEWS INTERNATIONAL Interior Ministry says no options offered to Qureshi The Interior Ministry has denied that Minister Rehman Malik gave four options to FIA officer Zafar Qureshi when they met in Islamabad, as reported by The News on Tuesday. The spokesman termed the news item false and concocted and clarified that Minister for Interior had offered no such options to his subordinate Mr Zafar Qureshi. …… Mr. Qureshi met in the presence of secretary interior only on matters pertaining to National Police Foundation which was pre-arranged. Ahmad Noorani Adds: Federal Interior Minister Rehman Malik in his clarification confirmed his meeting with Zafar Qureshi. The News story was based on credible information and was cross- checked from different interior ministry sources. It is astonishing why Rehman Malik discussed matters relating to National Police Foundation with Zafar Qureshi while he was working as ADG in FIA. The News will welcome any legal proceedings in this behalf and will present all kind of evidence in a court of law regarding Rehman Malik’s meeting with Zafar Qureshi and his offer of the four options as were mentioned in The News story and are reproduced in the Interior ministry clarification. The News stands by its story.
30. From perusal of the above reports, it stands prima facie
established that Mr. Zafar Ahmed Qureshi, after passing of order dated
1.7.2011 by this Court allegedly was given four options by the Federal
Interior Minister, reference of which has been made in the news
reports. In addition to it, the news items also indicate that the political
personalities joined their heads together for the purpose of flouting the
order of this Court. Prima facie, the order of suspension of Mr. Zafar
Ahmad Qureshi, based on vague assertions of addressing to media and
thereby committing misconduct, is tantamount to make the order of
this Court dated 1.7.2011 suspending the order of his transfer,
ineffective. In this behalf pictures of political persons having a
meeting, have also been published. It is to be noted that the news
published in the above noted newspapers have not been rebutted
except in one of the news papers i.e. The News International, where
19
the Ministry of Interior has contradicted the stand taken by the
newspaper but the newspaper stood by its story. Therefore, a
question for determination has arisen. At the same time the facts
narrated hereinabove lead us to believe that the suspension of Mr.
Zafar Ahmad Qureshi is not based on reasonable and fair ground.
31. The situation became bad to worst when immediately after
happening of the above said incidents, a campaign was launched
against the judiciary by a specific group for the purpose of
undermining the authority of the Court. Transcription of advertisement
is as under:
The Secretary Information was directed to personally look into the
matter and take necessary steps to ensure that the dignity of the
judiciary is not undermined. In the meanwhile he had not submitted
report, therefore, office had put up a note as such he was directed to
appear and submit report. Initially he made an attempt to offer
explanation but he was told in clear words that he had to submit
report fixing the responsibility upon the specific group which had
launched campaign against judiciary on the electronic media. On
26.7.2011 Acting Secretary, Ministry of Information and Broadcasting
submitted his report stating that he had telephonic conversation and
had also wrote letters to the heads of the TV Channels and endorsed
the copy of the same to the Chairman, Pakistan Broadcasters
Association to assist M/o Information in that matter and to provide the
requisite detail of the perpetrators of the advertisement in question.
He also assured that the M/o Information and Broadcasting is ready to
20
sit with the private TV channels to work out a mechanism to prevent
such unfortunate incidents in future.
32. The above facts indicate that allegedly political intervention has
been made to make the judicial order dated 1.7.2011 passed by this
Court ineffective. Under the circumstances learned Attorney General
was asked during the hearing of the case to obtain reaction of the
Interior Minister through Interior Secretary, reaction of Chief Executive
through Principal Secretary as well as reaction of Secretary
Establishment. Despite availing opportunities twice no progress was
made in this behalf. Inasmuch as, on the last date of hearing i.e.
25.07.2011 another request was made for the adjournment of the
case but not in so many words, therefore, prima facie presumption
had been drawn that the material published by print media, reference
of which has been made hereinbefore, establishes that the order dated
1.7.2011 has been made ineffective due to alleged political
expediency, otherwise the functionaries could have denied these facts
in black and white. We had observed about non filing of reaction by
the functionaries noted above in the order dated 25.07.2011 as well.
33. It is to be noted that move to keep Mr. Zafar Ahmad Qureshi
disassociated from the investigation of the cases succeeded as without
legal and regular manner he was suspended, whereas, there are cases
pending before this Court noted below wherein, in very serious issues
no suspension order has been passed:-
? Maulvi Iqbal Haider v. Capital Development Authority (PLD 2006 SC 394),
? In the matter of:Human Rights Case No.4668 of 2006 (F-9 Park case) (PLD 2010 SC 759),
? In Ref: Suo Moto Case No.5 of 2010 (LNG case) (PLD 2010 SC 731).
34. It is a matter of fact that through judicial verdict Mr. Kamran
Lashari, former Chairman CDA was required to be proceeded against
departmentally in Maulvi Iqbal Haider’s case as well as in F-9 Park’s
case but presently he is performing as Secretary in one of the
departments of the present regime. Whereas in instant case despite
passing of order a person was suspended within the shortest possible
21
time and apparently there was no object except to disassociate him
from the investigation of the case as it has been observed hereinabove
because the competent authority was not interested that he should
continue with the investigation of the cases arising out of FIRs No.24,
29 & 46/2010 and 05/2011 etc.
35. It is important to note that the basis on which Mr. Zafar Ahmed
Qureshi was suspended, does not seem to be sufficient to take
extreme step against him because he had written letter on noticing
that his members of the team had been transferred factually in
resentment of order of this Court dated 01.07.2011, whereby the DG
FIA was directed to cooperate with the investigation team but instead
of considering his request in pursuance of observations of this Court in
positive terms, these officers were transferred. Therefore, on
07.07.2011, D.G. FIA was called upon to withdraw/reverse their
transfer orders but instead of obeying the said order, on 11.07.2011
he left for U.K., although the orders dated 01.07.2011 and 07.07.2011
had been served upon him and the latter order was also passed in
presence of the Attorney General for Pakistan as well as Director Law
Muhammad Azam Khan. Thus he proceeded to defy the directions of
the Court, therefore, the Court had to intervene by issuing the
directions to Mr. Manzoor Chaudhry, Acting D.G. FIA to comply with
the order dated 7.7.2011 and place on record the required notification
of the transfer of the aforesaid officials. In the meantime, for violation
of the order of the Court dated 07.07.2011 matter was referred to the
Secretary Establishment for initiating proceedings of misconduct
against D.G. FIA for non-compliance of the order of the Court dated
07.07.2011. We were told that summary had been sent to the
competent authority but no response had been received. Contrary to
it, he was holding the post of DG FIA whereas on the other hand Mr.
Zafar Ahmed Qureshi, who had obeyed the Court order and stood for
the rule of law despite threats etc., advanced to him by the political
figures noted hereinbefore and had shown his commitment to
discharge his duties strictly in accordance with law, had been
suspended for no other purpose except to make the order dated
1.7.2011 ineffective.
22
For achieving the object the functionaries had not only taken the
stand on the basis of week plea but also accepted the political
pressure as is evident from the facts noted hereinabove. It is equally
important to note that in the order dated 14.07.2011 notice was
issued to Tehsin Anwar Ali, D.G. FIA to explain as to why instead of
burdening the exchequer the costs of the transfer of these officers to
different places may not be recovered from him. This notice was also
served upon him but he did not opt to appear or to file reply despite
issuing repeated directions, during the hearing of the case, to appear
before this Court through Ch. Manzoor Ahmed, Additional Director
General, FIA as well as the Attorney General. In this behalf the
Registrar of this Court was also directed to establish contact with him
to attend the Court but despite efforts of the Court, he not only failed
to appear before the Court but also left Islamabad, although initially
impression was given that he was coming to attend the Court.
Contents of the report received from the Registrar in this behalf are
reproduced hereinbelow:-
“As per Court direction to direct DG, FIA to appear before Bench
No.I, initially call was made on telephone No.9260093 at about
12:00 noon, the Operator (Mr. Nisar) responded that DG, FIA is
on the way to reach the Supreme Court. After a while the same
number was contacted again to inquire about the DG, FIA, this
time the said Operator changed his statement by saying that DG,
FIA has not come to the Office today, and in his knowledge he has
gone to the Supreme Court in connection of some case.
Mr. Iqbal, PA/LDC was also contacted on the above-said phone
number who responded that he has no information about the DG,
FIA. He was asked to give the contact number of a responsible
officer through whom DG, FIA can be contacted and he gave the
number of Mr. Waseem Ahmed, Chief of Staff to the DG, FIA. He
was contacted on his mobile number i.e. 0300-8433555 who
stated that he is on leave at Lahore but according to his
information DG, FIA has left for Karachi in the morning. When he
was contacted again at about 12:30 pm, he responded that DG,
FIA is in the flight for Karachi and will land there after half an
hour, after which he will convey the Order to him.
The DG, FIA was contacted several times on his cell number (03008456468) but was not responding. Submitted.
25.7.2011”
23
36. From the above noted facts, it is not difficult to deduce that
different devices have been adopted to make the order of the Court
dated 1.7.2011 ineffective with clear intention not to implement the
same and even if the said order is implemented, he (Mr. Zafar Ahmad
Qureshi) would be helpless to investigate the criminal cases as his
team had been transferred to far flung areas of provinces of KPK and
Balochistan. As has already been observed that ordinarily this Court
does not intervene in the functioning of the Executive but it has been
empowered, while exercising the powers of judicial review, to examine
the administrative orders as well. Admittedly the competent authority
has been vested with the discretion to pass administrative orders but
such discretion has to be exercised in accordance with law. In the
instant case there were certain allegations against Mr. Zafar Ahmad
Qureshi and a show cause notice was issued, which was replied by
him. On the basis of material, without considering the reply filed by
him, the person who called for his explanation though not empowered
for the same under Government Servants (Efficiency & Discipline)
Rules, being in grade-21. Without prejudice to the proceeding, no such
notice to call for his explanation within 24 hours was warranted under
the E & D Rules. It has also been admitted by the learned Attorney
General that it was not issued under Rule 6 of the E & D Rules, 1973
for misconduct rather the same was issued to get his response about
the allegations. It is evident from the record that the order of
suspension was issued by the person who was not competent as the
verbal orders were obtained from the competent authority, later on
confirmed by the Principal Secretary to the Prime Minister. Admittedly,
no incriminating material was produced except a letter and even
without considering the fact that whether reply was given or not.
37. It is well settled principle of law that where a procedure has
been provided for doing a thing in a particular manner that thing
should be done in that manner and in no other way or it should not be
done at all; indeed it impliedly prohibits doing of thing in any other
manner; the compliance for such thing in no way could be either
ignored or dispensed with. Reference in this behalf may be made to
the cases of E.A.Evans v. Muhammad Ashraf (PLD 1964 SC 536), Atta
Muhammad Qureshi v. The Settlement Commissioner (PLD 1971 SC
24
61), Muhammad Yousaf Khan v. Muhammad Ayub (PLD 1972
Peshawar 151) and Dost Muhammad v. Government of Balochistan
(PLD 1980 Quetta 1). Be that as it may, in absence of any material
available on record the competent authority has exercised the
discretion. There are certain norms for exercise of discretion. We are
not challenging the discretionary powers of the executive but the same
have to be exercised judicially and in reasonable manner as held in the
case of Tariq Aziz-ud-Din: in re (2010 SCMR 1301). The authorities
cannot be allowed to exercise discretion at their whims, sweet will or
in an arbitrary manner; rather they are bound to act fairly, evenly and
justly. Reference may be made to the cases of Abid Hussain v. PIAC
[2005 PLC (CS) 1117], Abu Bakar Siddique v. Collector of Customs
(2006 SCMR 705), Walayat Ali v. PIAC (1995 SCMR 650).
38. In the case of Sharp v. Wakefield [1891 AC 173] Lord Halsbury
has observed that when it is said that something is to be done within
the discretion of the authorities, it means that something is to be done
according to the rules of reason and justice, not according to private
opinion, according to law and not humour. It is to be, not arbitrary,
vague, and fanciful, but legal and regular. And it must be exercised
within the limit, to which an honest man competent to discharge of his
office ought to confine himself. The said case was relied upon by
Indian Supreme Court in the case of Union of India v. Kuldeep Singh
[2004(2) SCC 590].
In the cases of State of U.P. v. Mohammad Nooh (AIR 1958 SC
86), Pratap Singh v. State of Punjab (AIR 1964 SC 72) and Fashih
Chaudhary v. D.G. Doordarshan [(1989) 1 SCC 189], it has been held
that if the act complained of is without jurisdiction or is in excess of
authority conferred by statute or there is abuse or misuse of power, a
Court can interfere. In such an eventuality, mere fact that there is
denial of allegation of mala fide or oblique motive or of its having
taken into consideration improper or irrelevant matter does not
preclude the court from enquiring into the truth of allegations leveled
against the authority and granting appropriate relief to the aggrieved
party. Reference in this behalf may be made to the case of M.I.
Builders Pvt. Ltd. v. Radhey Shyam [(1999) 6 SCC 464] wherein it has
25
been held that the decision is unlawful if it is one to which no
reasonable authority could have come. In the case of Delhi Transport
Corporation v. D.T.C. Mazdoor Congress (AIR 1991 SC 101) the Court
held that the discretion enjoyed by the persons holding high offices
should not be left to the good sense of individuals and repelled the
presumption that person holding high office does not commit wrong.
Relevant paras therefrom are reproduced as under:-
"There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law..............
25. The "high authority" theory so-called has already been adverted to earlier. Beyond the self-deluding and self-asserting righteous presumption, there is nothing to support it. This theory undoubtedly weighed with some authorities for some time in the past. But its unrealistic pretensions were soon noticed and it was buried without even so much as an ode to it. Even while Shah, J. in his dissenting opinion in Moti Ram Deka v. General Manager, N.E.P. Railways, Maligaon, Pandu, (1964) 5 SCR 683: (AIR 1964 SC 600) had given vent to it, Das Guptam H. in his concurring judgment but dealing with the same point of unguided provisions of Rule 148(3) of the Railways Establishment Code, had not supported that view and had struck down the rule as being violative of Article 14 of the Constitution. The majority did not deal with this point at all and struck down the Rule as being void on account of the discrimination it introduced between railway servants and other government servants."
In the cases of E.P.Royappa v. State of Tamil Nadu (AIR 1974
SC 555), R.D. Shetty v. International Airport Authority [(1979) 3 SCC
489], Maneka Gandhi v. Union of India [(1978) 1 SCC 248], Ajay
Hasia v. Khalid Mujib [1981(1) SCC 722], Shri Sitaram Sugar Co. Ltd.
v. Union of India [1990 (3) SCC 223] the Supreme Court ruled that
every arbitrary action, whether in the nature of legislative or
administrative or quasi-judicial exercise of power, is liable to attract
26
the prohibition of Article 14 of the Indian Constitution. In the case of
State of NCT of Delhi and another v. Sanjeev alias Bittoo [(2005) 5
SCC 181] the court while holding that decision is irrational and Court
may look into the material on record, uphold the right of judicial
review, on the basis of illegality in decision making process coupled
with irrationality and perversity. It was further held that if the
administrative or judicial power has been exercised on non-
consideration or non-application of mind to relevant factors, such
exercise shall stand vitiated. Relevant portion from the judgment is
reproduced as under:-
"If the power has been exercised on a non- consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
39. It is an unwritten rule of the law that whenever a decision-
making function is entrusted to the subjective satisfaction of a
statutory functionary, there is an implicit obligation to apply his mind
to pertinent and proximate matters only, eschewing the irrelevant and
the remote. [Smt. Shalini Soni v. Union of India {(1980) 4 SCC 544}].
By now, the parameters of the Court's power of judicial review of
administrative or executive action or decision and the grounds on
which the Court can interfere with the same are well settled.
Indisputably, if the action or decision is perverse or is such that no
reasonable body of persons, properly informed, could come to or has
been arrived at by the authority misdirecting itself by adopting a
wrong approach or has been influenced by irrelevant or extraneous
matters the Court would be justified in interfering with the same.
[Commissioner of Income Tax v. Mahindra (AIR 1984 SC 1182)]. The
exercise of constitutional powers by the High Court and the Supreme
Court, under the relevant Articles, have been categorized as power of
"judicial review". Every executive or administrative action of the State
or other statutory or public bodies is open to judicial scrutiny and the
High Court or the Supreme Court can, in exercise of the power of
judicial review under the Constitution, quash the executive action or
decision which is contrary to law or is violative of Fundamental Rights
27
guaranteed by the Constitution. With the expanding horizon of Articles
dealing with Fundamental Rights, every executive action of the
Government or other public bodies, including Instrumentalities of the
Government, or those which can be legally treated as "Authority", if
arbitrary, unreasonable or contrary to law, is amenable to the writ
jurisdiction of the Supreme Court or the High Courts and can be validly
scrutinised on the touchstone of the Constitutional mandates.
[Common Cause, A Regd. Society v. Union of India (AIR 1999 SC
2979)].
40. It is to be noted that the object of suspending an officer from
duty during the pendency of an inquiry is that he should not be
allowed to tamper with documentary and oral evidence likely to be
produced in his case. This object, as has been observed above, can be
achieved in a very short time and if the case is likely to take more
time then the easiest way to avoid it is to transfer him to some other
department, so that he may not be able to tamper with the evidence
that may be produced against him. Undoubtedly under, the Service
Rules there is ample power with the Government to suspend a
Government servant both as a measure of penalty and during the
pendency of the departmental enquiry. But all actions taken under
these rules must be based on the principles of natural justice,
otherwise there was no need to frame them. The power of suspension,
therefore, must be exercised in a reasonable and fair manner. The
moment the effect of the exercise of such power is found to be unfair
and unjust, the Government servant, will be entitled to challenge it,
and Courts of law if satisfied that such orders are based on arbitrary
exercise of power will not hesitate to set them aside as they will be in
clear violation and breach of statutory rules. [Allauddin v. Chief
Commissioner (PLD 1959 Karachi 282)]. Under the circumstances
when this Court is already seized with the matter regarding
enforcement of fundamental rights in respect of corruption of huge
amount belonging to the nation, it is obliged to exercise its jurisdiction
under Article 184(3) read with Article 187 of the Constitution to
examine the vires of the order of suspension. As it has been noted
earlier, no reaction from the competent authority has been filed
despite of various adjournments in the case i.e. 7.7.2011, 13.7.2011,
28
14.7.2011, 15.7.2011 and 18.7.2011, therefore, in the given facts and
circumstances examination of the same in exercise of powers of
judicial review is permissible.
41. The suspension of Mr. Zafar Ahmad Qureshi as has been taken
place during the pendency of the matter before this Court followed by
the order dated 1.7.2011, therefore, called for exercise of power of
judicial review because an action which is not legal and regular and is
arbitrary, vague and fanciful has to be declared to be coram non judice
in the eye of law. Therefore, we are of the opinion that the suspension
order of Mr. Zafar Ahmad Qureshi dated 4.7.2011 followed by another
order passed later on, is not sustainable in eye of law and the
discretion by the competent authority has been exercised contrary to
the settled principles of law noted above.
42. In addition to above principle this Court is not debarred to
exercise a jurisdiction for ensuring fair investigation of the cases with
no other intention except to bring the accused to book who are
involved in the cases of corruption which is menace against the
nation/society and during the course of commission of offence if prima
facie they have looted the money and have also succeeded in taking it
outside the country. In India a matter was brought to the Supreme
Court complaining that CBI and other agencies have failed to
investigate into the offences because of the alleged involvement of
important politicians, bureaucrats and criminals, who all were
recipients of money from unlawful sources given for unlawful
considerations. The Court in Jain Hawala case observed that, “the
continuing inertia of the agencies to even commence a proper
investigation could not be tolerated any longer. In view of the
persistence of that situation, it becomes necessary as the proceedings
progressed to make some orders which would activate the CBI and the
other agencies to at least commence a fruitful investigation. Merely
issuance of a mandamus directing the agencies to perform their task
would be futile and, therefore, it was decided to issue directions from
time to time and keep the matter pending requiring the agencies to
report the progress of investigation so that monitoring by the court
could ensure continuance of the investigation. It was, therefore,
decided to direct the CBI and other agencies to complete the
29
investigation expeditiously, keeping the court informed from time to
time of the progress of the investigation so that the court retained
siesin of the matter till the investigation was completed and the charge
sheets were filed in the competent court for being dealt with,
thereafter, in accordance with law.” [Vineet Narain v. Union of India
(AIR 1998 SC 889)].
43. In the case of Bank of Punjab v. Haris Steel Industries (PVT) Ltd.
(PLD 2010 SC 1109), the matter related to one of the gravest
financial scams in the banking history of Pakistan as a result of
which the Bank stood cheated of an enormous amount of around
eleven billion rupees which in fact belonged to around one million
innocent depositors holding small accounts of money whose life
savings and property had come under serious threat causing thus
an obligation on Supreme Court to move to protect and defend the
property rights of such a large section of population. Contention
was raised that Supreme Court had no jurisdiction to control
investigation of a criminal case and the reasons offered in support
of the contention was that such a control over the investigation of
criminal case by Supreme Court could be prejudicial to the
accused. The Court held that the approach of a court of law while
dealing with criminal matters had to be dynamic keeping in view
the facts and circumstances of each case and also the surrounding
situation prevailing in the country; it would have been felonious
and unconscionable on the part of Supreme Court if it had refused
to intervene to defend the fundamental rights of such a large
section of the public and leaving it only to the concerned officials of
the NAB who had done nothing at all in the matter for almost two
years and who had remained only silent spectators of entire drama
and had only witnessed the escape of the accuse persons to foreign
lands; it was to check and cater for such kind of gross negligence
nonfeasance and malfeasance that the framers of the Constitution
had obligated the High Court under Article 199 and Supreme Court
under Article 184(3) of the Constitution to intervene in the matter
exercising their power to review the administrative and executive
actions.
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44. In view of the above facts and circumstances, we hold that:-
1. The order dated 4.7.2011 and or any other order,
suspending Mr. Zafar Ahmad Qureshi, Additional D.G. FIA
from service have been passed to render the
judgment/order dated 1.7.2011 ineffective and non-
operative. Thus, order dated 4.7.2011 suspending Mr.
Zafar Ahmad Qureshi or any other order, is quashed/set
aside. He shall be deemed to have been on duty as
Additional D.G. FIA pursuant to the order of this Court
dated 1.7.2011.
2. Mr. Zafar Ahmad Qureshi, Addl. D.G. is hereby directed to
carry out investigation of the cases registered vide FIRs
No.24, 29 & 46/2010 and 05/2011 etc., forthwith. He shall
complete investigation of the cases expeditiously.
3. The D.G. FIA, Additional D.G. FIA, Mr. Zafar Ahmad
Qureshi and other government authorities shall take steps
to ensure that public money sent abroad noted
hereinabove, shall be brought back. The D.G. FIA and
others shall not create hindrance in the investigation being
conducted by Mr. Zafar Ahmad Qureshi, Addl. D.G, under
the direction of this Court.
4. In pursuance of order dated 13.7.2011 passed by this
Court, no action shall be taken against Mr. Zafar Ahmad
Qureshi without prior approval of this Court. The
investigation team, which had already been assisting him,
would join him as team mates, unless he wants otherwise.
5. On having made the order dated 1.7.2011 ineffective,
prima facie interference has been made in the judicial
functioning of this Court as a result whereof not only the
authority of the Court has been eroded but at the same
time the investigation of the NICL cases have been badly
hampered, resultantly investigation has come to stand still,
no progress has been made and looted money, which has
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been taken outside the country is not likely to come back
unless the investigation of the case is conducted seriously
and the Government provides support to the prosecution
instead of withdrawing its support.
6. Mr. Zafar Ahmad Qureshi, Addl. D.G. shall be submitting
fortnightly report about the progress of the investigation
duly countersigned by the D.G. FIA to Mr. Justice Amir
Hani Muslim for perusal in Chambers.
7. Prima facie suspension order dated 4.7.2011 of Mr. Zafar
Ahmad Qureshi is the result of political intervention in the
affairs of this Court and it requires to be determined
accordingly in view of facts and circumstances narrated
above, which also includes pressurizing Mr. Zafar Ahmad
Qureshi by the high-ups to dissociate him from the
proceedings of the cases, as a follow up political
expediency, which has been widely reported by the print
media, referred to hereinabove, coupled with propaganda
on electronic media against judiciary by issuing
advertisements. The private T.V. Channels might have
declined to indulge in such campaign but the T.V. channels
being operated commercially prima facie can not be
blamed, however, the persons or a specific group who
have provided finances for this purpose are required to be
dealt with in accordance with law.
8. As it has been held above that prima facie Mr. Zafar
Ahmad Qureshi, Addl. D.G. was suspended due to political
intervention followed by propaganda against judiciary on
electronic media to undermine its authority, therefore, to
ascertain these and ancillary questions Mr. Justice Ghulam
Rabbani, Hon’ble Judge of this Court is appointed to
conduct enquiry and submit report on the basis of
evidence, which he will be empowered to collect to
determine:
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Qureshi, pressure was exerted upon him by the
Interior Minister etc. as it has been reported in the
newspapers due to political expediency, if so, to what
consequences?
against the persons responsible for making
investment to run the campaign against the judiciary
on the electronic media as it has been noted
hereinabove. On having determined the particulars of
the persons responsible for launching the propaganda
campaign against the judiciary what action against
him and or them is called for, to maintain the dignity
and honour of the Courts.
We would expect from him to complete the inquiry
expeditiously in the interest of justice.
9. Mr. Sajid Mehmood Qazi, Addl. Registrar of this Court is
deputed to facilitate Hon.ble Mr. Justice Ghulam Rabbani
during inquiry. Similarly the Federal Secretaries including
Secretary Interior, Secretary Establishment, and Secretary
Information shall provide assistance, whatsoever is
required by him to complete the report.
Adjourn to a date in office.
Chief Justice
Mian Shakirullah Jan, J.